The first question that we are usually asked when a person is seeking assistance with a deceased estate is whether or not a Grant of Probate is needed.

The answer to this depends on the type and value of assets held by the person at the time they passed away.

The Grant of Probate is used by the asset holder (e.g. bank, nursing home, share registry) to satisfy that the Supreme Court of New South Wales has found that the last Will is valid, and that the person providing instructions (the Executor appointed under the Will) to release those assets has the authority and power to do so.

When you need a Grant of Probate

In certain circumstances, a Grant of Probate will be required before an Executor can deal with the assets. This will include if the deceased person:

• Owns a share in a property or 100% of the property in their sole name;
• Has a significant Refundable Accommodation Deposit (RAD) with a nursing home;
• Has significant (usually above $20,000) cash at a bank held solely in their own name;
• Has significant value (usually above $20,000) in public listed shares held solely in their own name; and
• If additional assets are held in an Australian state other than New South Wales, or overseas.

When a Grant of Probate is not required

A Grant of Probate is usually not required for small valued estates.

In some situations, the asset holder will provide a threshold so that the asset can be released without the need for a Grant of Probate. It is important to make enquiries with the asset holder as this threshold is not fixed and may vary between institutions.

Jointly held assets

A Grant of Probate is not required for jointly held assets as these assets automatically pass to the survivor and bypass the deceased person’s estate.  This commonly includes but is not limited to:

• Real property held as Joint Tenants;
• Jointly held bank accounts; and
• Jointly held shares.

It is very common for couples to hold property as Joint Tenants and hold their money in joint bank accounts. This often means a Grant of Probate is not required for the first one in the relationship to pass away.

If you have any questions or should you need any assistance with applying for a Grant of Probate, please do not hesitate to contact us at Southern Waters Legal.